Madhya Pradesh High Court
Veer Narayan Rathore vs The State Of Madhya Pradesh on 6 October, 2015
1
HIGH COURT OF MADHYA PRADESH : JABALPUR
WRIT PETITION No. 10243/2007
Veer Narayan Rathore
Vs.
State of M.P. & others
____________________________________________________
Shri Sanjay Agrawal, learned counsel for the
petitioner.
Shri Vikram Johri, learned Panel Lawyer
Lawyer for the respondents/State.
____________________________________________________
Present : Hon'ble Shri Justice K.K. Trivedi
____________________________________________________
O R D E R
(06.10.2015)
1. The grievance of the petitioner is that despite making representation/application before the revenue authorities the said authorities are not taking any steps for correcting the revenue records and restoring back the name of the petitioner as owner of the land in dispute. The reliefs claimed in the present writ petition reads thus :
"(i) It is, therefore, prayed that the Hon'ble Court may kindly be pleased to issue writ /order/ direction to directing to the respondents to correct the Revenue Record and the name of the petitioner be recorded as the owner of the land.
(ii) It is further prayed that any other relief which this Hon'ble Court may deems fit and proper in the facts and circumstances of the 2 case be awarded. Cost of the petition."
2. It is contended in the writ petition that against the original holder of the land the proceedings under the Urban Land Ceiling Act, 1976 (hereinafter referred to as 'Act') was initiated in the year 1979. Upon issuance of notice under the Act, the returns were filed. Ultimately, final decision was taken declaring certain land as surplus. Proceedings against the said order were not done. The final order dated 28.05.1981 remained intact for a long time. However, during applicability of the aforesaid Act proceedings for taking over possession of the land said to be declared surplus were not done in appropriate manner inasmuch as no notice was issued or served on the actual holder of the land by the respondents authorities and the possession of the land was not taken by the said authorities even when the orders passed by the said authorities were not challenged anywhere. The petitioner thereafter came to know that the Act has been repealed and those proceedings which were not finally culminated were not saved. As a result and in terms of the provisions of Section 3 of the Repeal Act the proceedings initiated against the petitioner were required to be declared as abated and accordingly the name of the petitioner was to be restored back in the revenue records inasmuch as possession of the said land was never taken by the respondents authorities. Since such a prayer is not being considered by the respondents, the writ petition was required to be filed.
33. Opposing such a prayer made by the petitioner, return has been filed by the respondents raising a preliminary objection. Firstly, it is contended that the land was already taken in possession by the respondents authorities after giving a notice to the original holder of the land way back on 24.07.1993. Despite the service of notice, no action was taken by the said holder calling in question such an act of the respondents. The order passed by the competent authority under the Act was never called in question and, therefore, the writ petition is not maintainable as the same is filed after a long delay of years. Such a belated writ petition is not to be entertained by this Court. It is further contended that since in terms of the orders passed by the competent authority possession of the land was already taken and that order was never called in question anywhere by the petitioner, the repeal of the Act will not come in the way of the respondents and the land said to be declared as surplus has been vested in the State Government. In view of the aforesaid, it is contended that the reliefs claimed in the writ petition cannot be granted and the writ petition is liable to be dismissed.
4. This Court has directed by order dated 30 th April, 2012 to maintain status quo by the authorities in respect of the land in question as was existing on the date of order. This Court has further directed the respondents to file the relevant record for perusal of this Court. The photo copies of certain part of said record is produced by the learned counsel for the respondents 4
5. On perusal of the aforesaid record, it appears that though the proceedings were ultimately culminated against the original holder of the land, the predecessor of the petitioner, holding that the land was surplus and final order was passed but further proceedings for declaring the said land as vested in the State Government and for taking possession of the said land were not done in the appropriate manner. It appears that the notice under Section 10 (5) of the Act was issued to the holder of the land by the respondents. The notification itself was sent for publication in the gazette on 30th January, 1993. Why action could not be taken at the relevant time when the order was passed against the holder of the land way back in the year 1981 is not clear. From these proceedings, it is not clear as to why in terms of order dated 28 th May, 1981 expeditious proceedings were not done and following the provisions as contained in Section 10 of the Act possession of the land was not taken by the respondents/State. From this, it is clear that the original holder of the land and after him the petitioner had remained in possession of the land throughout, even when the order was passed against the holder of land on 28th May, 1981.
6. In terms of the law well settled, the respondents were required to show that the possession of the land was taken in the manner indicated under Section 10 of the Act. Section 10 (6) of the Act prescribed that in case after making a demand and after serving the notice on the 5 previous holder, if the possession of the land is not delivered, the authorities are required to serve the notice to take physical possession of the land. From the perusal of the notice placed on record of the original case, the same was issued only under Section 10 (5) of the Act on 24.07.1993, which was said to be served on 03.08.1993 on somebody whose name was not mentioned even in the service report. It is the contention of the petitioner that aforesaid Gulab Singh the original holder of land had died on 28.12.1992 and was not alive on 24.07.1993. There was no question of issuing the notice on that person and if that fact was not within the knowledge of the respondents, atleast this should have been reported by the server of the notice to the competent authority of the State. This further shows the casual manner of serving the important notice on the concerned person by the serving authority of the State. In view of this, there was no question of taking further steps for taking over possession of the land.
7. By repealing the original Act by Act No.15 of 1999 the Urban Land (Ceiling and Regulation) Repeal Act, 1999, (hereinafter referred to as "Repeal Act") the Parliament has made specific provisions for saving of certain proceedings. Section 3 of the Repeal Act deals with such proceedings which are to be saved. For the purpose of convenience the same is reproduced thus :
"3. (1) The repeal of the principal Act shall not affect-
(a) the vesting of any vacant land under sub-
Section (3) of Section 10, possession of which has 6 been taken over by the State Government or any person duly authorized by the State Government in this behalf or by the competent authority;
(b) the validity of any order granting exemption under sub-Section (1) of Section 20 or any action taken thereunder, notwithstanding any judgment of any court to the contrary;
(c) any payment to the State Government as a condition for granting exemption under sub-Section (1) of Section 20.
(2) Where
(a) any land is deemed to have vested in the State Government under sub-Section (3) of Section 10 of the Principal Act but possession of which has not been taken over by the State Government or any person duly authorized by the State Government in this behalf or by the competent authority' and
(b) any amount has been paid by the State Government with respect to such land, then, such land shall not be restored unless the amount paid, if any, has been refunded to the State Government.
8. Interpreting the said provisions, the Apex Court in the case of State of U.P. Vs. Hariram, (2013) 4 SCC 280, has held that possession should be actual physical possession bye-party and not otherwise. The interpretation by the Apex court in the said case as made in para 34 to 37 reads thus :
"34. Sub-section (5) of Section 10, for the first time, speaks of "possession" which says that where any land is vested in the State Government under sub-section (3) of Section 10, the competent authority may, by notice in writing, order any person, who may be in possession of it to surrender or transfer possession to the State Government or to any other person, duly authorized by the State Government.7
35. If de facto possession has already passed on to the State Government by the two deeming provisions under sub-Section (3) of Section 10, there is no necessity of using the expression "where any land is vested" under sub-Section (5) of Section 10. Surrendering or transfer of possession under sub-Section (3) of Section 10 can be voluntary so that the person may get the compensation as provided under Section 11 of the Act early. Once there is no voluntary surrender or delivery of possession, necessarily the State Government has to issue notice in writing under sub-Section (5) of Section 10 to surrender or deliver possession. Sub-section (5) of Section 10 visualises a situation of surrendering and delivering possession, peacefully while sub-section (6) of Section 10 contemplates a situation of forceful dispossession.
36. The Act provides for forceful dispossession but only when a person refuses or fails to comply with an order under sub-section (5) of Section 10. Sub- section (6) of Section 10 again speaks of "possession" which says, if any person refuses or fails to comply with the order made under sub- Section (5), the competent authority may take possession of the vacant land to be given to the State Government and for that purpose, force -as may be necessary- can be used. Sub-Section (6), therefore, contemplates a situation of a person refusing or fails to comply with the order under sub-Section (5), in the event of which the competent authority may take possession by use of force. Forcible dispossession of the land, therefore, is being resorted to only in a situation which falls 8 under sub-section (6) and not under sub-section (5) of Section 10. Sub-sections (5) and (6), therefore, take care of both the situations i.e. taking possession by giving notice, that is, "peaceful dispossession" and on failure to surrender or give delivery of possession under Section 10 (5), then "forceful dispossession" under sub-section (6) of Section 10.
37. The requirement of giving notice under sub- sections (5) and (6) of Section 10 is mandatory. Though the word "may" has been used therein, the word "may" in both the sub-sections has to be understood as "shall" because a court charged with the task of enforcing the statute needs to decide the consequences that the legislature intended to follow from failure to implement the requirement. Effect of non-issue of notice under sub-Section (5) or sub-Section (6) of Section 11 is that it might result in the landholder being dispossessed without notice, therefore, the word "may" has to be read as "shall."
9. Further this aspect has been considered by the Apex Court in the case of Gajanan Kamlya Patil Vs. Additional Collector and competent authority, AIR 2014 SC 1843. This Court has also decided certain issues in that respect placing reliance in the same exposition of the law by the Apex Court, in the case of Thamman Chand Koshta vs. The State of M.P., W.P. No. 407/2014, decided on 7th April, 2015, and many other cases. In W.A. No. 734/2008 Dhaniram (dead) through L.Rs. vs. State of M.P. and others, the Division Bench of this Court has further 9 placed reliance in the case of Hariram (supra), and has held that unless it is proved that the notice under Section 10 (5) of the Act was duly served on the previous holder of the land and thereafter action was taken under Section 10 (6) of the Act, it cannot be said that proper procedure was followed and as such the Repeal of the Act would be applicable in such proceedings. The proceedings are thus liable to be declared as abated.
10. From the perusal of the documents placed on record as Annexure R/1 with the return of the respondents, it is abundantly clear that proceedings were done ex parte against the original holder of the land and order was passed for taking ex parte possession of the land. That cannot be said to be a proper procedure followed by the authorities. Further as has been pointed out that by the time, the said notice under Section 10 (5) of the Act was issued to the said Gulab Singh on 24.07.1993, he had already expired. In view of this ex parte proceedings done by the respondents in taking possession of the land cannot be said to be proper proceedings entitling the respondents to say that the petitioner would not be entitled to any relief as the proceedings initiated by the respondents are not abated in terms of the Repeal of the Act. The objection as has been raised regarding delay caused in approaching the Court of law is also stated to be rejected, as the respondents themselves were not diligent in completing the proceedings within time rather in appropriate manner. Even otherwise, in view of the findings 10 recorded by the Division Bench of this Court in the case of Dhaniram (supra) in para 9, such an objection is liable to be ignored.
11. The writ petition is bound to be allowed. The proceedings done by the respondents for declaring the land of the petitioner as surplus are held to be abated in terms of the Repeal of the Act. The said proceedings are liable to be closed. Prayer of the petitioner for recording the name of the petitioner over the land in dispute in revenue entries is granted. Let the necessary action be taken in that respect within a month from the date of receipt of certified copy of the order passed today.
12. The writ petition is allowed to the extent indicated herein above. However, there shall be no order as to costs.
(K.K. Trivedi) Judge b